Cell Phone Snooping: Houston City Council Gives Stingray OK Despite Concerns

Bohac Bill to be heard Thursday while Feds local police keep public in dark Texas Insider Report: HOUSTON Texas Used by a growing number of local Police Departments & Federal Agencies most Americans are unaware of the growing use of cell phone tower simulators to monitor their cell phones. And while Houston Police Chief Charles McClelland denies his department uses the newest generation of the Stingray" technology there is reason to suspect the police chief might not be revealing everything he knows.  Texas legislators Dwayne Bohac (right R-Houston) and Senators Craig Estes (R-Wichita Falls) and Rodney Ellis (D-Houston) dont want to take the chance.    The Houston Police Department (HPD) has been using the Stingray"  a device capable of acting as a fake cell tower that forcing nearby phones to reveal their locations and call logs since at least 2007  with upgrades in both 2012 and 2015. And earlier this month Houston City Council approved $495021 in funding for upgrades of Houston Police Departments Stingray equipment and software. HPD plans to use a federal grant to purchase:

• Updated technology to replace one of three models the department uses
• 2 pieces of Electronic Hardware
• a Laptop Controller
• and related software

The purchase is similar to ones the city has approved several times since 2007 but this conversation comes as the secretive Stingrays have spurred privacy debates about electronic constitutional rights nationwide and two bills addressing their use have been filed in the state Legislature. Texas does not currently require law enforcement to obtain a probable cause warrant to use a Stingray. As a result Texas state lawmakers have introduced House Bill 3165 by State Rep. Dwayne Bohac (R-Houston) and Senate Bill 942 by Senators Craig Estes (R-Wichita Falls) and Rodney Ellis (D-Houston) both of which would require warrants for cell site simulators. Gregory Foster of the Electronic Frontier Foundation in Austin Texas believes there is a problem.

The law needs to be updated this session to establish a clear unambiguous standard of a Constitutionally valid probable cause warrant for Texas law enforcement use of Stingrays" Foster says. 

As the public wakes up to the dangers of indiscriminate monitoring police departments are being forced to acknowledge and defend the programs. Due to the secrecy surrounding the technology and its use it was difficult for judges and defense attorneys to protect the public against overreach by police.

Judges probably didnt understand" how the technology worked Laughrun told the Observer. I didnt understand it. What is it? What does it do? What do you get from it?"

In California the newly proposed California Electronic Communications Privacy Act would require warrants for the use of Stingray cellphone surveillance also known as cell site simulators. Houston We Have a Problem The public has a right to know how police departments are using their tax dollars especially when those tax dollars are funding devices with the capability to monitor the public though there may be legitimate reasons for not releasing details about specific operations. After the Houston City Councils approval of $495021 in funds for upgrades of the Stingray equipment and software the decision drew opposition from the citys civil liberties advocates and activists. Houstonian Kevin Wambold told City Council

We dont need to spend half a million dollars on something police are unwilling to discuss."

Despite the public approval of the updates and City Council records and purchase orders Houston Police Chief Charles McClelland continues to deny that the department uses the technology while also insisting that appropriate constitutional measures are adhered to whenever surveillance technology is used. When it comes to any type of electronic evidence since I have been police chief the Houston Polices policy is to get a warrant" McClelland says. But based on the level of secrecy surrounding use of the tools including Non-Disclosure Agreements (NDAs) with the FBI and the Florida-based Harris Corporation manufacturer of the most popular brand of cell tower Stingray simulators there is reason to suspect that the police chief might not be revealing everything he knows about Stingrays.

As the President of the largest criminal defense bar in the country this surprises me" said Carmen Roe president of Harris County Criminal Lawyers Association. Because to my knowledge no lawyer in Texas has ever seen anything filed requesting Stingray technology in any case.

Sgt. John D. Shirley a retired investigator with the Houston Police says the procedure for using a Stingray was very streamlined" in his experience but he did note that the process for obtaining a warrant was different than standard operating procedure. He explained:

My experience with the Stingray devices was in 2009 when trying to track down a murder suspect. I made the request to a unit in CID Communications Intelligence Unit and they handled all the issues with obtaining the warrant. This was very different from the normal warrant process because I had no idea what information the warrant actually contained and I wasnt the affiant to the warrant stated Shirley. This means that although I was directly involved in developing the probable cause and executing the warrant I was not at all involved in documenting the probable cause for the warrant"

A source within HPDs Criminal Intelligence Division said the unit that handles Stingray equipment for Houston is known as the Communications Intelligence Unit and consists of about five officers. The five officers handle incoming requests for use of the technology and as Shirley highlights they take care of any probable cause warrants largely leaving the officers in the dark about the Stingray approval process. Shirley says if Chief McClelland and Houstons Mayor Annise Parker are sure the program is constitutional then they should not shy away from open and honest debate." Indeed Sgt. Shirley offers a stark warning:

Our law-enforcement agencies arent secret police. So for them to think they can deploy this new technology without the watchful eye of the communities they serve is a very bad omen to what we should expect in the future."

Open Records requests seeking more information about the Communications Intelligence Unit and the Houston Police Departments use of Stingrays have been denied. The outright denials and other tight-lipped responses from law enforcement will likely continue until the public demands answers. What is a Stingray? According to the Electronic Frontier Foundation:

The Stingray is a brand name of an IMSI international mobile subscriber identity catcher targeted and sold to law enforcement. A Stingray works by masquerading as a cell phone tower to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not and tricks your phone into connecting to it. As a result the government can figure out who when and to where you are calling the precise location of every device within the range and with some devices even capture the content of your conversations."

It is not known whether the data is being stored and if so for how long and which agencies have access to it. Few of the devices capabilities are acknowledged by law enforcement but how it works is fairly well-known:

As long as a cellphone is emitting a signal to a cell tower a Stingray can find it. It has also been revealed that Stingrays force cellphones to send data back to the device at full signal consuming battery faster."

Thus a constantly dying battery could be a sign that a user is being tracked. The devices can be handheld or vehicle-based and body-worn" Stingrays have also been developed according to 2013 reports. It has also been reported that the U.S. Marshals Service has been working with the CIA to use a version of the cell site simulators known as DRT boxes inside Cessna planes. The so-called Dirtboxes" are supposed to be used for criminal investigations but the ACLU alleges they can collect data from tens of thousands of people on each flight. The civil liberties group filed a Freedom of Information Act (FOIA) request in November regarding the recently exposed program that uses aircraft to gather cellphone data. Yet the major difference between any past programs and the Stingrays is the layers of secrecy involved with the use of the Stingray. The first layer of secrecy is the use of NDAs by the Harris Corp. Local police departments have become subordinate to Harris and are prohibited from speaking on the details of their arrangements even in court. The work of intrepid journalists and privacy advocates has led to the release of certain details regarding the NDAs. An NDA signed by police in Tucson Arizona was exposed by public records requests from journalist Mohamad Ali Beau" Hodai. Hodai and his online news publication DBA Press was able to obtain a copy of the contract signed by the Tucson police and Harris Corp. in 2010. Similar cases have appeared in Florida and Baltimore. Authorities in Florida were tracking a suspected rapist using a Stingray. Court records show that police did not want to obtain a search warrant because they did not want to reveal information about the technology they used to track the suspects cellphone signal. In the Florida case Det. Christopher Corbitt was mentioned as the officer who handles electronic surveillance programs. In a transcript of the closed court hearing in 2010 Corbitt told the court that the officers used the Stingray to locate the suspect in an apartment complex. Corbitt describes how the officers went door-to-door searching for a response from the suspects phone:

We were able to actually basically stand at every door and every window in that complex and determine with relative certainty . . . the particular area of the apartment that that handset was emanating from."

More recently Det. John L. Haley was questioned in November on the possible use of Stingrays in a Baltimore circuit court. Haley who heads up Baltimores phone tracking unit declined to answer any questions citing an NDA with the FBI. Baltimore Circuit Judge Barry G. Williams reminded Haley he did not have an NDA with the court and threatened to hold the officer in contempt of court if he did not respond. The prosecution chose to withdraw the related evidence rather than discuss the technology any further. Documents obtained by The Associated Press show the Baltimore Police Department is yet another local police department that complies with NDAs with the FBI. AP reported on April 9:

The Baltimore police entered into an agreement with the Justice Department in 2011 which calls for the department to withhold information about the device in press releases court documents during judicial hearings or during other public forums and proceedings.

The agreement states that the department must seek FBI approval before sharing any details with other law enforcement agencies."

It was also revealed that the BPD used the Stingray about 4300 times since 2007 more than any other department in the country. The new information came in the testimony of Emmanuel Cabreja a detective with the departments advanced technical team. The officer said the police are using Hailstorm an upgraded version of Stingray. Cabreja said he had used the Stingray about 600 to 800 times in the last two years alone. The FBI and Harris Corp are both working to keep local police departments from disclosing new details about the technology. The FBI sent a letter to the Minnesota Bureau of Criminal Apprehension in 2012 ordering the department to contact the bureau if open records requests are filed. The letter says the department is to immediately notify the FBI of any such request telephonically and in writing in order to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels." In another incredible exercise of federal authority the U.S. Marshals intervened in a public records request to the Sarasota Police Department. The ACLU of Florida was seeking information on the technology when the group received a letter claiming that the records now belonged to the Marshals and could not be released. Yet the FBI and Marshals are not the only federal agencies interested in keeping things quiet. According to Christopher Soghoian the principal technologist at the ACLU Harris Corp. is required to call the NSA if anyone calls the company inquiring about the use of the devices. Victories in the Fight for Transparency Mass surveillance programs operated by an alphabet soup of three- and four-letter government agencies are an undeniable fact in todays post-Snowden era and the fact remains that the U.S. government has been monitoring communications in the United States and abroad for at least two decades. While past efforts typically involved federal government agencies local police department reports about Stingrays first began to surface in 2011. And details on the devices have only recently been revealed to the public. Just last month a New York Supreme Court judge ruled that the Erie County Sheriffs Office must comply with public records requests regarding the devices. The ACLU of New York sued the Sheriffs Office after it failed to respond to requests for information on how the devices are used. Justice Patrick NeMoyer sided with the NYCLU and ruled that the Sheriffs Office must hand over the data. NYCLU Staff Attorney Mariko Hirose lead counsel on the case said the decision confirmed that law enforcement cannot hide behind a shroud of secrecy while it is invading the privacy of those it has sworn to protect and serve." The documents released by the Erie County Sheriffs Office earlier this month include:

1. Purchase Orders
2. A letter from Harris Corp.
3. A Confidentiality Agreement between the Sheriffs Office and the FBI
4. A Procedural Manual and
5. A series of Summary Reports of instances in which the device was used

The records show the department used the device 47 times from 2010 to 2014 obtaining a court order just once. This contradicts the departments previous assurances that it would always obtain a court order or warrant to use the device. The documents also highlight problems with non-disclosure agreements (NDAs) between the FBI and police which often explicitly forbid police from discussing Stingrays in court orders unless given the specific written consent of the FBI. The most popular types of cell tower simulators are made by the Florida-based Harris Corporation. The New York State Supreme Court decision has not been the only victory in the fight for transparency and accountability. Last month TheBlot magazine released the first official look at a 2010 Stingray user manual obtained through FOIA requests to the FCC. The manual and other records reviewed by the magazine provide further detail. The definition of what constituted an emergency was intentionally left vague so that the authorization would cover law enforcement in a wide range of criminal investigations the source said." The manual also shows that Stingrays and Kingfish technology are sold as part of a surveillance kit with 3rd-party software and laptops. The laptops are manufactured by Dell and Panasonic and the software designed by a cellphone forensics company called Pen-Link.

• The manual is filled with warnings and reminders that the information is confidential" and not for public inspection."

Late last year a judge ordered the release of documents related to the use of Stingrays in the state of Florida. In an application for a warrant FBI Special Agent Michael A. Scimeca admitted that the devices have the potential to intermittently disrupt cellular service to a small fraction" of wireless customers in the immediate area. In February the Charlotte-Mecklenburg Police in North Carolina and local prosecutors were forced to release details about the secret surveillance program. The revelation followed an investigation by The Charlotte Observer and pressure from defense attorneys and privacy advocates who feared police were unfairly targeting innocent bystanders with the technology. The Observer reports that George Laughrun a defense attorney in Charlotte explained that due to the secrecy surrounding the technology and its use it was difficult for judges and defense attorneys to protect the public against overreach by police.

Judges probably didnt understand" how the technology worked Laughrun told the Observer. I didnt understand it. What is it? What does it do? What do you get from it?"

In at least one state judges have started to require law enforcement agencies to specifically ask for permission to use the technology. The Tacoma News Tribune reported in November that Pierce Countys 22 Superior Court judges require language in pen register applications that spells out police intend to use the device." Pen register applications have typically been used to tap landline phones. Indeed the type of approval sought by police tends to vary from city to city and state to state. Defense attorneys have started filing motions asking prosecutors to disclose if defendants have been located by the use of cell site simulators or other tracking devices. Meanwhile several states are currently debating legislation that seeks to limit the use of Stingray surveillance.